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The Exercise of Discretion in International Law

Edited by: Ulf Linderfalk

ISBN13: 9781035388370
To be Published: December 2026
Publisher: Edward Elgar Publishing Limited
Country of Publication: UK
Format: Hardback
Price: £125.00





This book addresses a fundamental element of international legal decision-making: the exercise of discretion. In a world where international law is growing rapidly to meet new challenges and the desires of international society, the conferral of discretion has become the preeminent strategy to make international legal systems efficient. This practice raises fundamental questions. They concern things such as the legal norms that constrain the exercise of discretion, the motives of legal decision-makers and the legitimacy of legal decisions.

Recent crises and emergencies – together with the idea that international law may benefit from automating parts of the fact-assessment process involved in legal decision-making – have accentuated the importance of these questions. In an attempt to come to grips with them, this book brings together contributing authors from different academic affiliations, backgrounds and research expertise. Their chapters explain the importance of more fully understanding discretion in international law but also highlight the complexity of the task. They point out the way forward for further research.

The Exercise of Discretion in International Law is an essential resource for students and scholars of public international law. Policymakers, practitioners and judiciaries who engage with international legal decision-making will also benefit from the detailed insights into the constraints on the exercise of discretion.

Subjects:
Public International Law
Contents:
PART I INTRODUCTION TO THE TOPIC AND TO THIS BOOK
1. The exercise of discretion as an object of academic study 2
Ulf Linderfalk

PART II THE EXERCISE OF DISCRETION IN GENERAL INTERNATIONAL LAW
2. The abuse of rights: an exercise in ground-clearing 12
Jack Wright Nelson
3. The exercise of discretion in treaty interpretation: the role of good faith 28
Ulf Linderfalk

PART III THE EXERCISE OF DISCRETION IN SPECIAL INTERNATIONAL LAW
4. Artificial intelligence, public decision-making and the right to a fair trial 50
Petra Gyöngyi
5. Between flexibility and constraint: Evidentiary discretion before the International Court of Justice 77
Amanda Bills
6. Discretion at international courts: The ICJ and the Genocide
Convention 103
Astrid Kjeldgaard-Pedersen and Mikael Rask Madsen
7. Discretion in international investment law and arbitration: natural persons as ‘foreign investors’ 125
Kseniia Soloveva and Eric De Brabandere
8. The exercise of discretion in Antarctic governance 149
Marta Sobrido-Prieto
9. Authority and the logic of listing: The exercise of discretion in international cultural heritage law 184
Christoph R. Schreinmoser
10. Navigating discretion in climate–ocean governance: Constraining criteria in the ITLOS climate change Advisory
Opinion 211
Henrique Marcos

PART IV PHILOSOPHICAL ASPECTS TO THE TOPIC
11. Discretion and the agents exercising it 250
Antonia Waltermann

PART V CODA
12. The exercise of discretion in international law: Why this topic needs studying, how it should be studied, and by whom 272
Ulf Linderfalk